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On May 12, 2014 DHS published a proposed rule to allow the spouses of certain H-1B temporary workers the right to work in the United States. The proposal would amend current regulations to grant spouses of H-1B workers the right to apply for an Employment Authorization Document (which affords a blanket authorization to work in the US) as long as the spouse holding H-1B visa status is the beneficiary of an approved I-140 Immigrant Visa Petition or has filed for an extension of H-1B visa status on the basis of an approved I-140 petition (pursuant to sections 106(a) and/or (b) of the American Competitiveness in the 21st Century Department of Justice Appropriations Authorization Act (“AC21”).

This proposed regulatory change recognizes that the green card process can take 10 years or longer to complete for applicants from countries such as India or China, which have significant immigrant visa backlogs. Throughout nearly the entirety of this staggeringly long process, spouses on H-4 dependent visas lack authorization to work. The current regulations limit these families to being one-income families, even when the spouse on an H-4 dependent visa wants nothing more than to work and earn an income. Immigrants who hail from countries that do not have immigrant visa backlogs get through the green card process in just a few years, and their spouses do not face this lengthy prohibition on working in the US.

The proposed rule recognizes this disparity in treatment based on country of birth and if the rule is finalized and implemented, it will go a long way towards alleviating this disparity and towards leveling the economic playing field. There is no question that many H-4 spouses who gain authorization to work will jump at the chance to work in the US and will enthusiastically seek employment. Hopefully one day DHS will go further and will authorize employment authorization for all H-4 spouses. This will make the US more competitive in the quest to attract foreign talent.

Recognizing E-3 and H-1B1 Temporary Work Visa Classifications in the Regulations

DHS also published some other welcome and long overdue proposed regulatory changes in the Federal Register on May 12, 2014. The proposals seek to amend the regulations to clarify certain conditions of employment and benefits that pertain to persons holding E-3 and H-1B1 temporary work visa status. The E-3 visa is available to Australian citizens who will work in a temporary professional-level position in the US and the H-1B1 visa is available to Chilean and Singaporean citizens who will work in temporary professional-level positions in the US.

While these visa classifications have existed for approximately ten (10) years, the regulations were never updated to make specific reference to these visa types. The proposal would amend the regulations to clarify that people holding these visa classifications may work in the US upon entry into the US with these specific visa types, and also that once the visa holders have entered the US to work, their employers may file extension petitions for them, and benefit from the 240 day rule that applies to other temporary work visa classifications. The “240 day rule” authorizes continued employment authorization for up to 240 days beyond the current work authorization expiration date, so long as the sponsoring employer timely files an extension of stay petition on behalf of an employee holding a temporary work visa status.

The proposed regulatory changes for E-3 and H-1B1 visa holders are long overdue. While the DHS makes no reference in the proposal to authorizing “Premium Processing” for petitioners filing to extend an employee’s visa status in one of these classifications, or to change an individual’s visa status within the US to either E-3 or H-1B1 status, one would assume and hope that the “Premium Processing” service indeed will be available in these circumstances. The other temporary work visa classifications can take advantage of the “Premium Processing” service which, for an additional fee, provides an expedited government decision, within 15 days of filing the petition. DHS did explicitly state in the proposal that a primary purpose in amending the regulations is to “provide equity” among similar classifications and to minimize disruptions to petitioning employers’ ability to maintain productivity. Allowing employers of E-3 and H-1B1 workers to take advantage of the Premium Processing would further that policy goal.

Leveling the Playing Field for Applicants for Outstanding Professor or Researcher Immigrant (“Green Card”) Petitions

The immigration law allows someone to seek permanent residence (“green card”) status if the person can show either that he or she is a person of extraordinary ability in his/her field or is an outstanding professor or researcher. The list of specific qualifying criteria for both of these green card categories are similar, but in the case of the “Extraordinary Ability” petition, there is a “catch-all” criterion, which allows the person to submit “comparable evidence” that demonstrates the person has reached the top of his or her field. Oddly, the list of specific qualifying criteria for the Outstanding Professor or Researcher green card category does not currently contain a “catch-all”, and applicants in this category clearly are at a disadvantage when compared with applicants in the Extraordinary Ability category.

The proposal seeks to harmonize the Outstanding Researcher or Professor regulations with the Extraordinary Ability regulations by adding this “catch-all” category to the list of allowed criteria. This is a positive development and hopefully the regulation will be finalized and implemented, paving the way for consideration by USCIS adjudicators of more types of evidence in support of these petitions.

Finally, the proposal also would extend the 240-day rule referenced above to CW-1 nonimmigrants whose employers have timely filed an extension of stay petition on their behalf. CW-1 nonimmigrants are transitional workers from the Commonwealth of the Northern Mariana Islands.

Conclusion

While belated, these proposed regulatory changes are welcome changes. Hopefully the regulations will be finalized promptly.

It would be very important and would make sense for the Premium Processing service to apply to petitions filed by employers on behalf of E-3, H-1B1 and CW-1 workers, in order to harmonize the regulations and provide equal opportunities for expedited immigration benefits for all the different types of visa classifications referenced in 8 CFR Section 274a.12(b)(20).

In recognition of the extremely lengthy immigrant visa backlogs and of the significant costs involved in filing for an employment authorization document, USCIS should issue Employment Authorization Documents to H-4 spouses for a validity period of at least two, if not three years.

While not a subject of this proposed rule, as a general matter, DHS would be wise to consider extending the Premium Processing service to all applicants for Employment Authorization Documents. If someone lacks work authorization an employer of course may not allow the individual to start work. It is as much in the interests of US employers and therefore in the interest of the US economy, that workers acquire the ability to work legally, with no undue delays. DHS would reap significant fee revenue from expanding the Premium Processing category to applications for an Employment Authorization Document, as a high proportion of both employers and prospective employees would be willing to pay a premium to receive the Employment Authorization Document in 15 days instead of in the usual 90 days.

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